from the if-at-first-you-don't-succeed dept

Last June, you'll recall that the U.S. Court of Appeals for the D.C. Circuit upheld the FCC's net neutrality rules, claiming the FCC was within its rights to reclassify ISPs as common carriers under Title II of the Communications Act. In fact, the FCC was driven toward that move by Verizon, which sued to overturn the agency's much weaker 2010 rules. Needless to say, ISPs were quick to try and appeal last June's court decision by requesting an en banc hearing before the whole court.

This week the court refused the industry's request, meaning the existing 2015 rules crafted and passed under former FCC boss Tom Wheeler remain intact. Consumer groups and content and hardware trade groups like Incompas were quick to applaud the ruling as a victory for consumers and those wary of large ISP attempts to hamper streaming video competition:

"Today’s court decision is a significant blow to those who want to take away Open Internet protections, raise prices and cut off the streaming revolution. The FCC and the courts have spent a significant amount of time and effort over more than a decade on various Open Internet policies, and the current law has shown itself to be both legally sustainable and market effective."

Of course things have been complicated by the fact that current FCC boss Ajit Pai last week unveiled his plan to kill the existing net neutrality rules and replace them with the policy equivalent of wet tissue paper. So while the current net neutrality rules will continue to stand, for now, Pai (likely with Congress' help) continues his attempt to roll the rules back at the behest of AT&T, Comcast, Verizon and Charter. ISP lawyers could appeal the en banc rejection to the Supreme Court, but with the current FCC looking to completely kill the rules anyway, it doesn't seem likely that the high court would hear the case.

And while consumer groups got notably excited about having any win in what's been an ugly few months for consumer-centric telecom policy, the actual opinions in the en banc rejection are a somewhat mixed bag. It's worth noting that the rejection made it clear that the en banc appeal was refused, at least in part, because of Pai's decision to launch a new NPRM:

"En banc review would be particularly unwarranted at this point in light of the uncertainty surrounding the fate of the FCC’s Order. The agency will soon consider adopting a Notice of Proposed Rulemaking that would replace the existing rule with a markedly different one. In that light, the en banc court could find itself examining, and pronouncing on, the validity of a rule that the agency had already slated for replacement."

And the dissenting positions of some of the judges are notably alarming in some regards. Especially that of Judge Brett Kavanaugh, who somehow managed to buy into an ISP claim that the courts -- and most observers -- had been laughing at for years. Specifically, the ISP claim that net neutrality rules somehow hamper their First Amendment rights. Said Kavanaugh:

"Absent a showing of market power, the Government must keep its hands off the editorial decisions of Internet service providers. Absent a showing of market power, the Government may not tell Internet service providers how to exercise their editorial discretion about what content to carry or favor any more than the Government can tell Amazon or Politics & Prose what books to promote; or tell The Washington Post or the Drudge Report what columns to carry; or tell ESPN or the NFL Network what games to show; or tell How Appealing or Bench Memos what articles to feature; or tell Twitter or YouTube what videos to post; or tell Facebook or Google what content to favor."

Again though, arguing that rules protecting consumers from anti-competitive ISP behavior is a free speech issue remains a bizarre distortion. The idea was largely shot down during the court's ruling last year. Even many ISPs had been walking away from this argument -- after having simply used it as a scattershot attempt to see what claims stuck. But in their own options, Judges Srinivasan and Tatel are quick to warn that Kavanaugh's opinion, if piggybacked upon during future rulemaking, could let large ISPs easily dodge Pai's plan to hold them accountable via "voluntary" commitments and shaky FTC oversight:

"Under that view, an ISP, for instance, could hold itself out to consumers as affording them neutral, indiscriminate access to all websites, but then, once they subscribe, materially degrade their ability to use Netflix for watching video — or even prevent their access to Netflix altogether — in an effort to steer customers to the ISP’s own competing video-streaming service. Alternatively, an ISP, again having held itself out as affording its customers an unfiltered conduit to internet content, could block them from accessing (or significantly delay their ability to load) the Wall Street Journal’s or the New York Times’s website because of a disagreement with the views expressed on one or the other site.

An ISP has no First Amendment right to engage in those kinds of practices. No Supreme Court decision suggests otherwise ... The First Amendment does not give an ISP the right to present itself as affording a neutral, indiscriminate pathway but then conduct itself otherwise. The FCC’s Order requires ISPs to act in accordance with their customers’ legitimate expectations. Nothing in the First Amendment stands in the way of establishing such a requirement in the form of the net neutrality rule."

Where we go from here could get even complicated (at a time when Joe Public already had no idea what any of this means), but the opinions of the en banc rejection will be certain to resurface on May 18, when Pai's 2-1 partisan majority will formally vote to begin dismantling the rules. Keep in mind Pai still has to prove to the courts that the market has changed substantively enough to justify a complete reversal of Title II in the wake of last year's court ruling.

Pai knows this will be a challenge, which is why it seems likely that net neutrality opponents will try to use Pai's saber rattling to push through a "compromise" GOP law promising to "fix" net neutrality once and for all. Folks relentlessly pushing this route tend to ignore the fact that large ISP lobbyists and lawyers will be the ones writing these laws, ensuring they're so packed with loopholes as to be less helpful than no rules at all.

Judge Brett Kavanaugh

According to this man, Absent a showing of market power, the Government may not tell sewage companies how to exercise their discretion about what which brand of toilet paper I am allowed to use to wipe my ass

Absent a showing of market power, the Government must keep its hands off the editorial decisions of Internet service providers.

Somewhere a judge has confused the pizza parlor with the telephone company, that is the cable business with the Internet connection business. As a result he is trying to say that the phone company can decide which pizza parlor you can order your pizzas from because the phone company also has an associated business of selling pizzas.